WASHINGTON, Feb. 28, 2016 – The death of Supreme Court Justice Antonin Scalia has moved to the forefront a pivotal issue in the presidential campaign. The next president is likely to choose two to four members of the Supreme Court. Depending on who retires or whose health does not hold out, such appointments could tilt the current balance of the court not merely in ultimate results but also in the intellectual gravitas with which decisions are supported.
Merely electing a Republican president is no guarantee that an original intent constructionist will be nominated. Reagan appointee Sandra Day O’Connor wrote the opinion overturning Nebraska’s partial-birth abortion ban. David Souter, a Bush I appointee, and Justice John Paul Stevens, a Gerald Ford nominee, both became associated with the liberal wing of the court. Anthony Kennedy, another Reagan nominee, wrote the pro-gay marriage decision and is often seen as the critical swing vote on the most controversial cases. Most recently, it was Bush II appointee John Roberts who provided the deciding vote and authored the seminal decision upholding Obamacare.
The selection of the next several Supreme Court justices will determine whether the Constitution will be interpreted so as to limit the reach of the federal government into areas that were intended to be reserved to the states or the people, and whether our cultural values will be determined by nine black-robed lawyers imposing their personal views in the guise of purported constitutional analysis. Now that gay marriage has been declared the law of the land, will the religious liberty of churches and business owners be respected or will they be compelled under the threat of heavy financial penalty to refrain from speaking against gay marriage or to cooperate with the performance and celebration of gay marriages? Will one more vote be added to the three existing votes and the expected fourth vote to conclude that the Second Amendment’s right to bear arms does not create a private right of self-defense?
Perhaps no presidential decision will have the same dramatic impact on the rights and lives of Americans as Supreme Court appointments. Justices have served 20 to 35 years, spanning many presidencies, congresses and elections. Hence, it may be suggested that, with the Republican candidates in general agreement on key issues such as the protection of the unborn, immigration, tax reform, foreign policy and traditional marriage, the decisive issue in choosing among the candidates may be his or her dependability to appoint original intent justices.
The least predictable decision maker in this regard appears to be Donald Trump. He is a person who has always thrown principle to the wind when he admittedly contributed for business reasons both to very liberal Democrats and to Republican politicians. He feels it is perfectly fine to say anything he wants, true or not, in pursuit of a goal. In the past, he has praised Hillary Clinton, single-payer healthcare and abortion. He has not demonstrated over a sufficient length of time that he is truly dedicated to conservative principles.
Although he has said he would pattern a Supreme Court appointee after Justice Clarence Thomas, Donald Trump’s website does not convey an understanding of the importance of defending the Constitution and consequently the importance of Supreme Court appointments. In fact, he had previously stated that his sister, Maryanne Trump Barry, who as a Third Circuit judge wrote an opinion overturning New Jersey’s partial birth abortion ban before, but rendered after, the Supreme Court had spoken on the issue, would make an excellent Supreme Court candidate. So what gives voters any confidence that he is even concerned with, let alone will appoint, principled conservative justices?
This contrasts, for instance, with the Ted Cruz and Marco Rubio websites, which do address the importance of constitutional interpretation. Rubio’s website specifically states, “It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.“ Cruz’s website does extensively discuss constitutional issues, cataloging his efforts as a proponent of original intent construction, although he had apparently been a supporter of Justice Roberts’ nomination.
Dr. Ben Carson has penned a book, “A More Perfect Union,” wherein he approvingly indicates that “the Constitution’s framers fully understood that it would be necessary to control the growth and power of the central government in order to maintain the freedom of its citizens” and admonished that “[w]e the people must be knowledgeable about our Constitution and brave enough to act upon our values, principles, and convictions.” As citizens continue primary voting, it is hoped that concern about the future of the Constitution will loom large in their deliberations.